The defendants appeal as of right from a conviction for first-degree murder in the Essex County Court upon which they were sentenced to life imprisonment by reason of the recommendation of the jury. The theory of the prosecution was felony-murder based upon a killing ensuing from the commission of robbery. N.J.S. 2 A:113-1 and 2. The death resulted from injuries sustained in a "mugging," -- a term commonly used to describe the vicious act of physical attack upon an isolated pedestrian on a public street at night and the taking of money and effects from his person. It constitutes the felony of common-law robbery.

The State introduced evidence from which the jury could find beyond any doubt the necessary elements of the felony-murder committed by two Negro youths. It was convincingly established by witnesses who were in the vicinity and from medical testimony that the decedent, Carmine Dellorto, about 66 years old, was attacked by two such persons for the purpose of robbery while waiting for a bus at the southeast corner of 15th Avenue and South 10th Street in Newark near midnight on June 13, 1958, that he was knocked down by a strong blow to the face, and that he struck the back of his head on the pavement, sustaining a fractured skull from which he died on the spot within a few minutes. A wallet, which it was shown he had in his hip pocket on leaving the home of a friend in the area a few minutes earlier to walk to the bus stop, was missing from his person.

The substantial issue at the trial was the connection of defendants with the offense. They are Negroes and were 17 years old at the time. (Being under the age of 18, they were juveniles under our law, but subject to prosecution as adult criminals either on their own demand, or, as occurred here, on the discretionary order of the Juvenile and Domestic Relations Court in cases where one 16 or 17 years of age

is an habitual offender or is charged with an offense of a heinous nature under circumstances which may require the imposition of a sentence for the welfare of society. N.J.S. 2 A:4-15; R.R. 6:9-7.) No witness identified them as the youths involved and implication was made out on their oral and written statements given during a period of questioning at police headquarters several days after the crime and admitted in evidence by the trial judge as voluntary, following a preliminary inquiry which produced sharply conflicting testimony on that issue. Defendants' proofs sought to establish that they never in fact made any admissions of guilt, were actually at their respective homes when the crime was committed and had no connection with it.

It is here urged that the State's proofs were insufficient to warrant the submission of the case to the jury as to Stanford and that the verdict was against the weight of the evidence as to both defendants. Certain other alleged trial errors, chiefly relating to questions of evidence, are also asserted. It is strongly insisted that the statements were inadmissible and the convictions cannot stand because defendants were detained and questioned in police headquarters and dealt with prior to indictment in violation of procedures specified by our statutes and rules and the confessions obtained by means contrary to due process of law under the Fourteenth Amendment of the United States Constitution. Reversal is further claimed on the ground that the trial judge refused to instruct the jury to determine again whether the statements were voluntarily given and to reject them entirely if found not to be of that character.

Consideration of the points raised requires a more detailed recital of events and evidence. Within a few hours after the occurrence, the police obtained the stories of several people who had been in the immediate vicinity at the time, although none had seen the attack. These persons were prosecution witnesses at the trial and their testimony represented the only evidence having any bearing on defendants' connection beyond the statements.

The principal witness was Louis Pizza, a 21-year-old bank clerk, who lived on the south side of 15th Avenue one door east of the South 10th Street corner. Near midnight on the evening in question, he was sitting on the stoop in front of the adjoining building, talking with a friend. (The friend was in service and not available to testify at the trial.) He noticed a man walk past on the sidewalk in front of him going west toward the corner. A minute or two later two colored boys, about 17 years old, passed, walking in the same direction. He did not continue to watch them. In a couple of minutes he heard a noise in the vicinity of the corner which sounded like a crack, "I never heard anything like it," and he and his friend started to get up from the stoop. As they did so, the same two boys came around the corner and passed them, running very fast. The boys continued running to 9th Street, one short block east, where they turned south toward 16th Avenue. Pizza and his friend then went to the 10th Street corner. Just as they got there it started to rain very hard. They found the man who had walked past them a few minutes before (the decedent) lying just south of the corner, with his head out in the street and his feet over the curb.

An important part of Louis Pizza's testimony was the general physical description he gave of the two youths, the only witness to furnish anything at all on this score. Besides giving their race and approximate age, he said one was rather tall and thin, about five feet, eight or nine inches, and the other was shorter and a little stockier. The taller one had "a sort of raincoat or trench coat on, a light or a white one I think it was," and the other was wearing "a sort of tan jacket, * * * a half jacket, * * * a shorter jacket." He thought the shorter one wore a hat. However, at no time, prior to or at the trial, was he asked by the police or the prosecutor to attempt to identify anyone, and he told defense counsel he could not do so.

About the same time Mr. and Mrs. Nicholas D'Andrea were riding in their car north on South 10th Street between

16th and 15th Avenues. The beam of their headlights brought into vision two people bending or stooping over a third lying near the corner. As the car lights illuminated the scene, the two arose and ran around the corner east on 15th Avenue toward 9th Street. Mr. D'Andrea turned right into 15th Avenue and his wife saw them running down the south side of the street. Neither could give any description of the two figures whatever, even as to color, and naturally was never called upon to attempt any identification.

The final person who had a glimpse of the perpetrators of the crime was Jerry Pizza, Louis' younger brother, who was standing in front of a hot dog store at the northwesterly corner of 15th Avenue and 9th Street. He saw two Negro boys, about 17 or 18 years old, running east "pretty fast" on the opposite sidewalk of 15th Avenue. They turned the corner and continued south on 9th Street. Mr. and Mrs. D'Andrea then drove up and "asked me if I saw two young men running, and when I said yes, they said that they had just mugged a man down at the corner." Jerry then started chasing the boys down 9th Street. He never got close to them and when he reached 16th Avenue, they had disappeared from view. A friend of his came along in a car, and they made a search of the neighborhood by that means, in the course of which he saw the two again, coming from Springfield Avenue at 6th Street and entering a house on 16th Avenue in that vicinity. He then returned to the scene of the crime and gave the information to police officers who had arrived. At the trial he testified he could not identify the fugitives or give any description beyond their race and approximate age observed from across the street as they rounded the 9th Street corner.

The medical testimony established, from an autopsy conducted the next day, that death was caused by a fracture of the skull at the site of a lacerated wound on the back of the head, obviously where the decedent hit the pavement. There were also lacerations and bruises about the lower part

of the nose and mouth, giving rise to an irresistible inference that a blow had been received in that region.

With this information in hand, the Newark police, on Monday following the Friday night of the crime, rounded up some 17 Negro juveniles and questioned them at police headquarters. Included was the defendant Smith. He denied any knowledge of the event and was released. No point is here made with respect to that interrogation.

A week later, on June 23rd, about 4 o'clock in the afternoon, Smith and Stanford were brought to the homicide squad room in headquarters by three detectives for questioning as suspects. No warrant was previously issued. Although the matter was not fully explored at the trial and the record is not entirely clear, it seems apparent this course was followed because one David Parker, an 18-year-old resident of defendants' neighborhood who had been questioned in headquarters earlier that same day about this and other "muggings," told the police defendants had recounted to him the morning after the crime that "they got themselves a cat at 15th Avenue and 10th Street last night."

Smith was less than three months short of being 18 years of age; Stanford had become 17 only the month before. The police were aware of their juvenile status. According to the evidence at the trial, Smith was five feet four inches in height and about 132 pounds in weight. Stanford was five feet seven inches or so tall and weighed 147 pounds. He had gone as far as the 11th grade in school and Smith at least the 9th grade. Stanford had been employed in a manufacturing plant in the city for about nine months at wages of $44 per week. Smith had no steady job, but did painting and work for a landscaper when such work was available. There is no indication they were not of normal mind and will. They had known each other for a dozen years and were intimately acquainted. Stanford lived with his family on Camden Street about a block from the home of Smith's parents on Bergen Street near 13th Avenue, where the latter had resided prior to his marriage

13 days before. At the time Smith and his wife Ruth were living on Morris Avenue two or three blocks southeast of his parents' home. His wife's family lived a block or so south at number 195 on the same street. Residing in the latter house also was Smith's wife's aunt, Betty Brown Bey, a young girl with whom Stanford had been "going" for about two years. All the houses mentioned are within four blocks or so of each other. The scene of the crime is in the same section of the city but about three blocks south and eight or nine blocks west of the area of these residential locations. It should also be noted, the importance of which will appear, that Betty had a married sister, referred to as Jewel, Juliette or Florine, who lived on 15th Avenue near South 15th Street, about five blocks further west of the spot of the killing and on the opposite side of the avenue.

The questioning of defendants at police headquarters fairly soon produced, according to the detectives, oral admissions of guilt, first by Stanford and then by Smith. The preparation and signing of written confessions followed, on one of which it is set forth that it was sworn to on June 24 at 1:24 A.M. and on the other, at 1:27 A.M., approximately 9 1/2 hours after the arrival at headquarters. The conflicting testimony relating to the obtaining of the statements, given at the preliminary inquiry on admissibility, will be summarized in our discussion of the points raised with respect thereto. Immediately thereafter defendants were removed to the Youth House, the approved Essex County facility for detention of juveniles pending hearing in the juvenile court. There is no suggestion they were ever questioned again.

On June 27, a complaint in the Essex County Juvenile and Domestic Relations Court was sworn to by a detective, alleging delinquency in that defendants robbed and killed Mr. Dellorto. The matter came on for hearing on July 3, presumably as scheduled by the court. They were represented by counsel of their own choosing (not the attorneys who

appeared at the trial and on this appeal), who had conferred with them at the Youth House shortly after they were confined there.

At the outset of the hearing, the judge, after reading the complaint and R.R. 6:9-7 to defendants, announced that it appeared to his satisfaction they were charged with a heinous offense and that in addition the court records before him indicated they were habitual offenders. He then said he was referring the case to the county prosecutor, for disposition as an adult crime, pursuant to N.J.S. 2 A:4-15 and the implementing rule above cited, since under the circumstances the imposition of a sentence rather than the disposition permitted under the Juvenile and Domestic Relations Court Act might be necessary for the welfare of society. Although no stenographic record was made, it would seem defense counsel did not challenge the correctness of the basis of the court's determination, but sought to present testimony that defendants were not involved in the crime and contended that any determination as to transfer should not be made until after such evidence had been submitted and considered. The judge ruled that it was not necessary to take testimony since the charge itself was of a heinous offense, i.e., that such was all that was involved in such a hearing and guilt or innocence was not to be inquired into. It is not now claimed the case should not have been transferred for prosecution. At the same time the court ordered defendants removed from the Youth House to the Essex County Jail, finding there was no other safe or suitable place for their detention. They were kept there until trial in a separate section reserved for juveniles.

Subsequently the present indictment for murder was returned by the Grand Jury. Defendants were not at any time brought before a court for the purpose of a preliminary hearing or examination on the question of probable cause that an offense had been committed and that they had committed it.

Prior to trial present counsel moved in the County Court to dismiss the indictment on the ground, among others, of

the alleged invalidating effect of certain of the pre-indictment procedures in the light of our rules. It was heard by the judge who later presided at the trial and denied in an opinion reported at 52 N.J. Super. 556. The points urged on the motion will be considered so far as pertinent in a later portion of this opinion.

Thereafter, on defendants' motion, the State was ordered to furnish extensive particulars of the charge and its proposed proofs, including the names and addresses of all witnesses and copies of defendants' statements. Defense counsel were also authorized to engage, at public expense, the services of a qualified physician to study the autopsy report and assist in the preparation and trial of the case.

To return to the evidence at the trial, -- at the conclusion of the inquiry on admissibility of the statements, which had been had in the presence of the jury, the trial judge stated he found the statements to be "voluntary" and so told the jury. He further instructed it, however, and repeated in the charge, that it should take into consideration all the facts and circumstances surrounding the giving and obtaining of the statements in carrying out its function of determining the weight and belief to be given them. As has been indicated, he also expressly refused to charge defendants' request that the jury redetermine the question of voluntariness.

The written confessions thereafter read to the jury may be summarized. Smith's said that on June 13, his wife went to her mother's at 195 Morris Avenue at 4 P.M. and he went there about 9:30 P.M. Stanford was there but his "girl friend" Betty was not. Stanford asked him to walk to Jewel's (Betty's sister) house at 15th Avenue and 15th Street where Betty was. They left 195 Morris Avenue at 10:30 and went to Jewel's, stopping at a hot dog stand en route. They stayed at Jewel's until about midnight and then walked down the north side of 15th Avenue until they passed 10th Street, when they crossed to the south side and walked (back) towards the 10th Street corner and

stopped. "There was a white man standing on the corner and he looked like he was waiting for a bus, we stood on the corner for a few minutes and the white man turned around and looked at us. At that time I was about three feet from the man and he was right alongside of me, while the man was looking at us I stepped up and I hit the man on his jaw with my right hand and the man went down * * *. We had made no plans to rob this man but when we got on the corner Lee said 'Smith do you want to get this man' and that is the time I struck the man * * *. Lee searched the man and I seen a car's headlights and the car was about ten or fifteen feet away and I told Lee there is a man in the car and both of us started to run down 15th, Ave., towards 9th, street, and turned right on 9th, street and left at 16th, ave., and left at Camden, street and we stopped and sat on a porch as it was raining." Smith said he there asked Stanford what he got out of the man's pocket. The latter replied $12, of which he gave Smith $6. Smith saw no wallet. Stanford then went on home and Smith returned to 195 Morris Avenue, picked up his wife and went to his home. He said he was wearing a black three-quarter length leather jacket and a black hat and that Stanford had on a gray raincoat and a black hat.

Stanford's confession differed in some details. He does not state when the two left 195 Morris Avenue and makes no mention of Smith's wife being there, saying Smith thought, when he went with him to Jewel's, that his wife might be at that place. He says they left Jewel's about 11 P.M. and after they crossed to the south side of 15th Avenue east of 10th Street "Clarence turned around toward 10th Street and he said come on or look athere and we started back toward 10th, Street, and I asked him where he was going and before he answered me we were at the corner * * * and old man had just walked up * * *. I seen Clarence strike the old man with his fist one punch and the old man fell on his back * * *. Just as the man fell I got there and I bent down over the man and

Clarence was already bent down over the man and I saw Clarence take a * * * old leather wallet from the man's hip pocket." The story of the flight also varied. Stanford said they stopped in a hallway on 16th Avenue "because somebody was chasing us and it had started to rain." Thereafter they ran down 16th Avenue to Fairmount Avenue and over that street to South Orange Avenue, during which Smith gave him the wallet which was empty and which he threw away. (There was no testimony the police had found the wallet or had even made an unsuccessful search.) They split up at South Orange Avenue and Stanford went home. He said he was wearing a dark raincoat and no hat and Smith was wearing a light gray jacket and a dark hat. (At the trial Stanford testified he was wearing either a white or gray raincoat and a hat; Smith denied telling the police the clothes he or Stanford had on.)

Prior to the reading of the written statements to the jury, three of the detectives who had participated in the questioning took the stand to recount the oral admissions made by defendants during the earlier part of the interrogation, which, while generally similar to the later prepared written statements, in some respects implicated Stanford further than his confession. Their testimony in the latter respect, entirely from recollection, they having made no notes at the time, was to the effect that about 6 P.M. on the day of the questioning, one of them told Stanford that Parker had related to him the meeting with Stanford and Smith the morning after the crime at which defendants recounted the event. At first Stanford denied it but later, according to the detectives, admitted that they did so tell Parker (this phase was never further explored at the trial) and that they did commit the crime. The detectives say Stanford then went on to detail the events as recounted in his written statement with the significant addition that, while he and Smith were walking east on the north side of 15th Avenue between 10th and 9th Streets, they saw a man walking west on the opposite sidewalk, whereupon Smith is

reported to have asked Stanford "Shall we get this cat?," after which Smith crossed the street, Stanford followed him and they turned and walked behind the man to the 10th Street corner. Why this highly incriminating recital was not included in his subsequent written confession was not explained, although it was not made to the same detective who composed the document.

Defendants' case, beyond character witnesses and denials of having admitted any guilt to the police, was based on an alibi. They both testified they left 195 Morris Avenue about 8 o'clock or shortly before and walked the 12 blocks or so to Jewel's to see Betty, arriving there before 8:30 and, after watching television, started back about 9:30 or so. They reached 195 Morris Avenue before 10 o'clock. The route they described did not take them past the 10th Street corner. Stanford said he stayed a few minutes and Smith then walked part way home with him. He claimed he was home by 10:30, since he had to go to work the next day, although it was a Saturday and not a work day. Smith said nothing on direct examination about the subsequent walk toward Stanford's house, but told about it on cross-examination (during which he altered somewhat the various times to which he had testified on direct examination) as well as of an attempted visit to his mother's home (neighbors told him his family was in bed) before he returned to 195 Morris Avenue the second time. He placed this arrival at 10:30 and said he stayed there until 11:30 or so. He then went to his own rooms with his wife, reaching there before 12 o'clock. Members of Stanford's family and Smith's wife and her relatives, except Jewel who was ill at the time of the trial, generally supported the testimony as to times of leaving and arrival at the various houses mentioned.

I.

We will deal first with the grounds urged for reversal apart from those relating to the pre-indictment procedures and the oral and written statements of guilt.

Defendant Stanford contends that his motions for judgment of acquittal at the close of the State's case and after the evidence of both sides was concluded should have been granted because the proofs were insufficient to warrant his conviction. R.R. 3:7-6. It is claimed that, even conceding his confessions, he was no more than a bystander at the scene and did not participate in the crime committed by Smith. If such be the unquestionable state of the proofs, Stanford could not be found guilty. State v. Fox, 70 N.J.L. 353 (Sup. Ct. 1904). But it is equally elementary in felony-murder that when two persons agree to rob another and only one strikes the fatal blow, both are guilty. All actually taking part in the perpetration of the felony are treated alike, even though one be not physically present at the scene, and every person aiding and abetting in its commission is punishable for the consequences as a principal to the same extent as the actual murderer. N.J.S. 2 A:85-14; 2 A:113-4. State v. Cole, 136 N.J.L. 606 (E. & A. 1947), certiorari denied 334 U.S. 851, 68 S. Ct. 1503, 92 L. Ed. 1773 (1948), rehearing denied 334 U.S. 862, 68 S. Ct. 1519, 92 L. Ed. 1782 (1948); State v. Turco, 99 N.J.L. 96 (E. & A. 1923); State v. James, 96 N.J.L. 132, 153 (E. & A. 1921); 2 Schlosser, Criminal Laws of New Jersey, § 1394 (Rev. ed. 1953). And it is likewise well established that proof one "is present at the commission of a crime without disapproving or opposing it, is evidence from which, in connection with other circumstances, it is competent for the jury to infer that he assented thereto, lent to it his countenance and approval, and was thereby aiding and abetting the same." State v. De Falco, 8 N.J. Super. 295, 299 (App. Div. 1950); cf. State v. Corby, 47 N.J. Super. 493, 499 (App. Div. 1957), affirmed 28 N.J. 106 (1958).

The test on a defendant's motion for judgment of acquittal is whether there is any legal evidence before the jury, viewing the proofs in their entirety and giving the State the benefit of all proper inferences therefrom, from which a conclusion of guilt could properly be drawn. State

At this point we should digress to say that the indictment was entirely adequate (State v. Bunk, 4 N.J. 461, 466 (1950), certiorari denied 340 U.S. 839, 71 S. Ct. 25, 95 L. Ed. 615 (1950)) and the prosecutor's opening to the jury outlining the proofs he expected to introduce was clearly sufficient to present this theory. Defendants' additional point that an earlier motion for acquittal made following the opening should have been granted on the ground of some deficiency in these respects is utterly without merit. We may further interpolate to say that we also find no possible basis for the additional claim of error in the denial of a further motion made on behalf of Stanford at the same time to require the prosecution to elect whether it was proceeding on a theory of robbery or attempted robbery. Both were mentioned at one point in the opening, but the prosecutor clearly went on to say the State would show that defendants took a wallet from the decedent's person. The statute makes the killing murder and in the first degree whether the felony is completed or only attempted. N.J.S. 2 A:113-1 and 2. Moreover, defendants could not conceivably have been prejudiced by the matters which were the subject of the two motions just referred to.

Concerted action does not have to be proved by direct evidence of a formal plan to commit a crime, verbally concurred in by all who are charged. The proof may be circumstantial. Participation and acquiescence can be established or inferred from conduct as well as from spoken words. Cf. State v. Cerce, 22 N.J. 236 (1956). Here there can be no doubt Stanford's motions for acquittal were properly denied although he did not personally strike Mr. Dellorto and there is no proof he orally expressed agreement in the proposed robbery. Considering the legally applicable proof at the end of the State's case most favorably to it, there is shown between his oral and written statements, assuming

them to have been properly admitted, that he followed Smith from the north to the south side of 15th Avenue after they saw a man walking west on the south side and after Smith had said "Shall we get this cat?," that he joined Smith in trailing the man to the South 10th Street corner, that he stood alongside when Smith struck the blow, that he at once bent down to go through the victim's pockets and found Smith already doing that very thing, that they both fled when the automobile headlights illuminated the scene and that Smith gave him the wallet during the flight, which he opened, found empty and threw away. At that stage of the trial, there was also sufficient independent proof, although the question is not explicitly raised, of facts and circumstances strengthening the confession and tending to generate a belief in its trustworthiness (State v. Johnson, 31 N.J. 489, 502-503 (1960); State v. Lucas, 30 N.J. 37, 56 (1959)) to be found in the testimony of the Pizza brothers and Mr. and Mrs. D'Andrea previously summarized. The situation was no less strong from the prosecution standpoint at the end of the entire case for the defense was primarily alibi. There was clearly enough for the jury to find, under appropriate instructions as to the requisites of culpability on the part of Stanford which the trial judge carefully gave and are not challenged, that he was a willing participant acting in concert with Smith and so equally guilty of first-degree murder.

We next come to the argument that the verdict was contrary to the weight of the evidence as to both defendants. The contention seems to be that the jury mistakenly believed the confessions and wrongly failed to give credence instead to defendants' denials of guilt and alibi testimony. A jury verdict shall not be set aside on this ground by an appellate court "unless it clearly and convincingly appears that [it] was the result of mistake, partiality, prejudice or passion." R.R. 1:5-1(a). It is, of course, axiomatic that we may not, in implementation of this rule, weigh the evidence and substitute our judgment for that of the jury or overturn a verdict

simply because in our opinion we would, or a jury should, have found otherwise on the same evidence. (We do not mean to intimate any view as to whether we would have done so here.) Our review is limited to correcting injustice where there is an inescapable conclusion of obvious error by the jury. State v. Welsch, 29 N.J. 152 (1959); State v. Landeros, 20 N.J. 76 (1955), certiorari denied 351 U.S. 966, 76 S. Ct. 1025, 100 L. Ed. 1486 (1956).

The finding of guilt here obviously must rest on the oral and written confessions of defendants. Without them, the prosecution clearly had not made out a case for there was not sufficient extrinsic evidence to identify them as the perpetrators. Enough independent proof as to probable trustworthiness of the statements had been introduced, however, to meet requirements of admissibility on that score. It will also be noted that the statements are at variance in a number of details and, as is frequently the case, each defendant sought to place a greater onus on the other with respect to certain aspects than the other was himself willing to admit. But Smith confessed he struck the blow in aid of robbery, and as has been pointed out, Stanford sufficiently implicated himself. The trial judge on numerous occasions meticulously cautioned the jury that it could consider admissions only as against the one making them and no complaint is asserted in that connection. If the oral and written confessions were correctly found to be "voluntary," it was a question for the jury whether it would believe the individual admissions made therein in the light of all the proofs, including the circumstances under which they were obtained, or whether it would give controlling weight to defendants' evidence seeking to establish they had no connection with the offense. The issue was entirely one of credibility for determination by the trier of the facts and an appellate court cannot, in the proper exercise of its review function in such a situation, say that this guilty verdict was the result of mistake or prejudice, despite the

Defendants further assert reversible error in the admission of two sets of black and white photographs. One group was of decedent's body as found at the scene and the other, taken in the morgue prior to autopsy, showed the condition of the face and a large laceration on the back of the head. It is urged that their introduction was unnecessary to establish the State's case and calculated to arouse the passions of the jury. Admission of photographic evidence, properly proved and having probative value, even if somewhat inflammatory, in color and only cumulative, is mainly within the discretion of the trial judge, whose ruling will not be overturned save for abuse, as where logical relevance will unquestionably be overwhelmed by the inherently prejudicial nature of the particular picture. State v. Smith, 27 N.J. 433, 448-449 (1958), certiorari denied 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2 d 103 (1959); State v. Bucanis, 26 N.J. 45, 52-54 (1958), certiorari denied 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2 d 1160 (1958). Here we find no semblance of any abuse. All such photographs are bound to be unpleasant, but these are not unduly gruesome. They had ...

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